Simmering differences and discontent in the top judiciary exploded on Friday, January 12, when the Chief Justice of India Dipak Misra came under attack from four of the senior most judges of Supreme Court in a press conference that sent shook the top echelons of the Indian state.
The press conference, a first of its kind for sitting judges of the Supreme Court, was held at the residence of Justice Chelameswar. The judges said that the situation in the top court was ‘not in order’ and many ‘less than desirable’ things have taken place.
“It’s an extraordinary event in the history of the nation and the judiciary,” said Justice Chelameswar addressing the presser.
Stating that they had tried to meet and discuss the matter with CJI Deepak Misra but failed to convince him, the judges – Justices Jasti Chelameswar, Ranjan Gogoi, Madan Lokur and Kurian Joseph – said there was an immediate need to preserve the judiciary system in the country if democracy has to be protected.
“About a couple of months ago, the four of us gave a signed letter to CJI. We wanted a particular thing to be done in a particular manner. It was done, but in such a way that it raised further questions on integrity of institution. The same thing happened this morning when the four of us went to meet the CJI with a specific request, but unfortunately we couldn’t convince him that we are right and appropriate action needs to be taken. Therefore, we are left with no choice except to communicate it to the nation,” Justice Chelameshwar said.
Justice Chelameswar said all the four judges “failed to persuade CJI that certain things are not in order and therefore you should take remedial measures. Unfortunately our efforts failed. And all four of us are convinced that democracy is at stake and many things have happened in recent past.”
Asked what these issues were, he said they included the “allocation of cases by CJI”.
When asked by the media if the issue was about the case involving the death of CBI Judge BH Loya, Justice Gogoi said, “Yes.”
“Sometimes the administration of the SC is not in order and many things which have happened in the last few months that have compelled them to put the facts before the nation, said Justice Chelameshwar.
“All our efforts have failed and we are all convinced that unless this institution is not preserved, democracy can’t be protected in the country,” Justice Chelameswar said.
Citing an instance, Justice Chelameswar said: “About a couple of months ago, four of us gave a signed letter to CJI. We wanted a particular thing to be done in a particular manner. It was done, but in such a way that it raised further questions on integrity of institution. The same thing happened this morning. Justice Gogoi further said: “We are discharging our duty to the nation by telling you what’s what.”
“Four of us are convinced, the democracy will not survive. We met CJI this morning, with specific request but we could not convince him. We had no choice but to communicate to the nation to take care of the institution. We place it before people of country,” Justice Gogoi said.
“There are many wise men saying many wise things in this country. We don’t want wise men saying 20 years from now that Justice Chelameswar, Gogoi, Lokur and Kurian Joseph sold their souls and didn’t do the right thing by our constitution,” Justice Chelameswar said, concluding the press conference.
“Nobody is breaking the rank and it is a discharge of debt to the nation which we have done,” Justice Gogoi said during the press conference.
“There have been instances where cases having far-reaching consequences for nation and the institution had been assigned by the Chief Justices of this court selectively to the “benches of their preference” without any rationale basis for such as assignment…,” their letter to CJI said.
A number of reactions from leading personalities in the country were reported.
Indian jurist and former Attorney-General of India Soli Sorabjee, reacting to the press conference held by four senior judges of the Supreme Court, said, “There’s no question of selling their souls. I don’t think it’s a good move and I’m not in favour of it at all. I’m very upset about this, I wish the four Supreme Court judges hadn’t done this. This will have severe repercussions on judiciary.”
Senior advocate Dushyant Dave, writing in The India Express, said that the “Chief Justice of India is exercising his power to constitute benches, allocate cases in a manner that raises questions about independence of judiciary.”
“An independent and strong judiciary is the basic feature of the Constitution. We are faced with an extraordinary situation where the judiciary is being marginalised from within, not from outside. It is important for this institution to ensure that an impression is not given to the public that the constitution of benches and allocation of matters is being done in a manner more palatable to the executive. Government is the single biggest litigant before the Supreme Court. Citizens are entitled to expect the free and fair administration of justice,” wrote Dave.
Indira Jaising, Supreme Court advocate: “I think it’s a historic Press Conference. It was very well done. I think we, the people of India, have a right to know what is going on within the judiciary & I welcome this.”
“We are very concerned to hear 4 judges of the Supreme Court expressed concerns about the functioning of the Supreme Court,” said a tweet from the Congress Party.
BJP MP and senior lawyer Subramanian Swamy said: “We can’t criticize them, they are men of great integrity & have sacrificed a lot of their legal career, where they could’ve made money as senior counsels. We must respect them. PM must ensure that the 4 judges & CJI, in fact whole SC come to one opinion & proceed further.”
“Judges had to come before the media and take this unprecedented step. This means that there is a serious dispute, either with Chief Justice of India (CJI) or some internal dispute,” PB Sawant, former Supreme Court judge said.
Senior politician Yashwant Sinha said in tweet: “Absolutely unprecedented, the press conference of the four senior judges of supreme court. Most important take away ‘when national interest is at stake ordinary rules of business do not apply.”
“Deeply sad and pained and I also feel a sense of agony that highest court of land should come under such severe stress that forces judges to address the media,” Salman Khurshid, senior advocate said.
“This is a black day for Judiciary. Today’s press conference would cause a bad precedent. From now on every common man could look at all judicial order with suspicion. Every judgement will be questioned,” said senior lawyer Ujjwal Nikam.
“I think all four judges should be impeached, they have no business to sit there and deliver verdicts anymore. This trade unionism is wrong. Democracy in danger is not for them to say, we have parliament, courts, police functioning,” said Justice RS Sodhi (Retd)
Full text of the judges’ letter to Chief Justice of India, Dipak Misra:
Dear Chief Justice,
It is with great anguish and concern that we have thought it proper to address this letter to you so as to highlight certain judicial orders passed by this court which has adversely affected the overall functioning of the justice delivery system and the independence of the High Courts besides impacting the administrative functioning of the office of the Honourable Chief Justice of India.
From the date of establishment of three chartered High Courts of Calcutta, Bombay and Madras, certain traditions and conventions in the judicial administration have been well established. The traditions were embraced by this court which came into existence almost a century after the above mentioned chartered High Courts. These traditions have their roots in the anglo-saxion jurisprudence and practice.
Once of the well settled principles is that the Chief Justice is the master of the roster with a privilege to determine the roster, necessity in multi-numbered courts for an orderly transactions of business and appropriate arrangements with respect to matter with which member/Bench of this court (as the case may be) is required to deal with which case or class of cases is to be made. The convention of recognising the privilege of the Chief Justice to form the roster and assign cases to different members/benches of the court is a convention devised for a disciplined and efficient transaction of business of the court but no a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues. It is too well settled in the jurisprudence of this country that the Chief Justice is only the first amongst the equals — nothing more or nothing less. In the matter of the determination of the roster there are well settled and time honoured conventions guiding the Chief Justice, be the conventions dealing with the strength of the Bench which is required to deal with a particular case or the composition thereof.
A necessary corollary to the above-mentioned principle is the member of any multi-numbered judicial body including this court would not arrogate to themselves the authority to deal with and pronounce upon matter which ought to be heard by appropriate benches, both composition wise and strength wise with due regard to the roster fixed.
Any departure from the above two rules would not only lead to unpleasant and undesirable consequences of creating doubt in the body politic about the integrity of the institution. Not to talk about the chaos that would result from such departure.
We are sorry to say that off late the twin rules mentioned above have not been strictly adhered to. There have been instances where case has far-reaching consequences for the nation and the institution had been assigned by the Chief Justice of this court selectively to the benches ‘of their presence’ with any rationable basis for such assignment. This must be quarded against at all costs.
We are not mentioning details only to avoid embarrassing the institution but note that such departures have already damaged the image of this institution of some extent.
In the above context, we deem it proper to address you presently with regard the order dated 27th October, 2017, in R B Luthra vs. Union of India to the effect that there should be no further delay in finalising the Memorandum of Procedure in the larger public interest. When the Memorandum of Procedure was a subject matter of a decision of a Constitution Bench of this court in Supreme Court Advocates-on-Record Association and Anr. vs Union of India, [(2016) 5 SCC 1] it is difficult to understand as to how any other bench could have dealt with the matter.
The above apart, subsequent to the decision of the Constitution Bench, detailed discussions were held by collegium of five judges (including yourself) and the Memorandum of Procedure was finalised and sent by then Honourable Chief Justice of India to the Government of India in March 2017. The Government of India has not responded to the communication and in view of this silence, it must be taken that the Memorandum of Procedure as finalised by the collegium has been accepted by the Government of India on the basis of the order of this court in Supreme Court Advocates-on-Record Association (Supra). There was, therefore, no occasion for the bench to make any observation with regard to the finalisation of the Memorandum of Procedure or that issue cannot linger on for an indefinite period.
On 4th July,. 2017, a bench of seven judges of this court decided In Re Honourable Shri Justice C S Karnan [(2017) 1 SCC 1]. In that decision (referred to in R P Luthra) two of us observed that there is a need to revisit the process of appointment of judges and to set up a mechanism for corrective measures other than impeachment. No observation was made by any of the seven learned judges with regard to the Memorandum of Procedure.
Any issue with regard to the Memorandum of Procedure should be discussed in the Chief Justices’ conference and by the Full Court. Such a matter of great importance, if at all required to be taken on the judicial side, should be dealt with by none other than a Constitution Bench.
The above development must be viewed with serious concern. The Honourable Chief Justice of India is duty bound to rectify the situation and take appropriate remedial measures after a full discussion with the other members of the collegium and at a later stage, if required, with other Honourable Judges of this court.
Once the issue arising from the order dates 27th October, 2017, in R P Luthra vs Union of India, mentioned above, is adequately addressed by you and if it becomes so necessary, we will apprise you specifically of the other judicial orders passed by this court which would require to be similarly dealt with.
With kind regards,
Madam B Lokur